' MIR MUHAMMAD NAWAZ MARRI, J.---Petitioner has assailed order of Secretary, Local Government, Government of Balochistan through this Constitution petition, passed on 2-8-1995.
2. Brief facts of the case are that on 25th June 1995, a notice for auction of Octroi Post Municipal Committee, Pishin for the year/twenty-two months Eleven days, commencing from 19-8-1995 to 30-6-1997, was published in Daily Newspaper Mashriq, Quetta. All the interested Contractors were directed to deposit Rs,10,00,000 (Rupees ten lacs) as Call Deposit. Since the petitioner was interested, he deposited Rs,10,00,000 (Rupees ten lacs as Call Deposit) and participated in the auction which was held on 29th June 1995, in the office of Municipal Committee, Pishin. As the petitioner offered highest bid of Rs,1,03,70,000 (One crore three lacs and seventy thousand), therefore, the Chairman, Municipal Committee made recommendation in favour of the petitioner for approval to the Commissioner, Quetta Division and Secretary, Local Government. In response to the letter dated 1-7-1995, the Secretary, Local Government declined to approve contract of petitioner for 22 months and in pursuance thereof through Telegram dated 27-7-1995, intimated respondent No,3 about rejection of bid given by petitioner and further directed to arrange re- auction of Octroi Post only for 10 months and 15 days. On 31-7-1995, the petitioner came to know that respondent No,3 without complying with the directions of Secretary, Local Government, intended to give the contract to respondent No,4 without auctioning the same. On the same day he submitted an application to Secretary, Local Government, requesting for grant of contract to him for 12 months and offered Rs,52,00,000 (Rupees fifty-two lacs) for the contract. Respondent No,2 on 2nd of August 1995, approved the recommendation made by respondent No,3 and the contract was awarded to respondent No,4 on consideration of Rs,48,10,000 (Rupees Fourty-eight lacs and ten thousand).
3. Being aggrieved of the above order present Constitutional petition has been filed with the following prayer:--
(a) Declaring that the respondents Nos. 1 and 3, had no lawful authority vested in them to award the Octroi contract to respondent No,4 vide letter of acceptance dated 2-8-1995, without holding public auction.
(b) Action so taken by the official respondents in awarding the contract of Octroi Post of Pishin for the year 1995-96 to respondent No,4 is in violation of mandatory requirement of Law and Octroi Rules and Letters dated 23rd July, 1995 and Letter dated 27-7-1995 issued by respondents Nos.1 & 3 respectively.
(c) Further declaring that the order dated 2-8-1995 regarding the approval of so-called bid of respondent No,4 worth Rs,48,10,000 as void, illegal and without lawful authority and jurisdiction and of no legal consequence.
(d) Declaring that no auction was carried out conducted by the respondent No,4, therefore, bid so offered in the office of respondent No,3 accepted by respondent No3, approved by respondent No,1 vide letter dated 2-8-1995 illegal, improper, with mala fide intention, thus totally, without lawful authority and jurisdiction and of no legal consequence.
(e) Declaring the respondents (official) to hold open public re-auction for the Octroi of Municipal Committee, Pishin for the year 1995-96. Or in alternative the petitioner be declared as lawful contractor on the highest offer made by him, than that of respondent No,4.
(f) Any other relief deems fit and appropriate may also be awarded alongwith the cost of the petition.
4. We have heard Syed Ayaz Zahoor learned counsel for the petitioner and Mr. M. Zafar, Advocate for respondent No,4, Mr. Jan Muhammad, Advocate for respondent No, 3, whereas official respondent(s) were represented by Mr. Yaqoob Khan Yousafzai, Advocate-General, Balochistan.
' Syed Ayaz Zahoor learned counsel for the petitioner argued that the petitioner was highest bidder, therefore, the contract should have been awarded to him. If at all bid was not acceptable to the authority then the respondent No,3 should have acted in accordance with law and direction given to him by Secretary, Local Government vide his telegram dated 27-7-1995, for auctioning the same.
All the interested contractors should have been given opportunity to participate in open auction.
Instead of adopting procedure described in the Rules the respondents Nos.1 and 3 awarded the contract to respondent No,4 in utter violation of Octroi Rules and Law, therefore, he requested that the recommendations made by respondent No3 and approved by respondent No,1, be declared having been passed without lawful authority. In support of his contention he referred judgment reported in PLD 1976 SC page 581.
' Mr. Yaqoob Khan Yousafzai, learned Advocate-General, Balochistan, opposed the petition on the ground of maintainability. According to him alternate remedy was available by filing appeal under section 149 of Balochistan Local Government Ordinance, 1980. He further submitted that a writ cannot be issued in a matter where contractual obligation is involved. His next contention was that the contract was awarded to the respondent No,4 in the "Large Interest of Public".
' M/s. M. Zafar and Jan Muhammad, Advocates contended that Rule 225 is directory in nature and not mandatory. The bid offered by the petitioner in open auction was rightly rejected as it was awarded for 22 months which was violation of the Rules. It was further submitted that the petitioner has not come with clean hands as according to his own showing he submitted an application for grant of Octroi contract without observing Rules.
5. We have considered the arguments put forth by the learned counsel for parties in the light of relevant provisions of law and record made so available. The moot question in this petition is whether the Secretary Local Government (respondent No, 1) had jurisdiction to approve the nomination of respondent No,4 by relaxing all the Rules for re-auctioning the Octroi Post with the plea that the Octroi contract has been approved in favour of respondent No,4 considering his previous conduct and in the larger interest of public. The expression "Public Interest" has not been defined in the Ordinance or the Rules framed thereunder, therefore, it is now settled principle of interpretation of statute that the words have to be given their ordinary meaning in absence of any special meaning assigned to them under the relevant statute or the statutory rules. In this behalf the judgment of Hon`ble Supreme Court in Ashiq Hussain v. The State and Sumaiya Zareen v.
Selection Committee reported in 1989 SCMR page 392 and 1991 SCMR page 2099 may be referred.
The word "Public Interest" has been defined in Black's Law Dictionary which is as under:- "Public interest. Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, State or national Government.
' If by public permission one is making use of public property and the chances to be the only one with whom the public can deal with respect to the use of the property, his business is affected with a public interest which requires him to deal with the public on reasonable terms. The circumstances which clothe a particular kind of business with a 'Public interest', as to be subject to regulation, must be such as to create a peculiarly close relation between the public and those engaged in it and raise implications of an affirmative obligation on their part to be reasonable in dealing with the public. One does not devote his property or business to a public use, or clothe it with a public interest, merely because he makes commodities for and sells to the public in common callings such as those of the butcher, baker, tailor, etc."
' Bare perusal of the above-quoted definition indicates that something in which public interest has some pecuniary interest or some interest by which their rights and liabilities are affected. The definition clearly indicates that the "Public Interest' was not served because if an auction had taken place the contract would have been awarded to the highest bidder which would have been in the interest of public. For the simple reason that the Town Committee would have been benefited by increasing the revenue resources of Town Committee, Pishin. On the contrary awarding the contract to respondent No, 4 in violation of the Rules was against the "Public Interest" The requirement of Rules 225 (6) is that the person whose bid has been accepted at the auction shall deposit with the officer conducting auction for the performance of his obligation in regard of the collection of Octroi and payment 9f lease money to the Municipal Committee, therefore, it is not job of the authority to foresee the performance of other participants in the auction as the public interest is secured under Rule 225 (6). Therefore, it appears that the order passed by respondents Nos. 1 and 3 was merely in clourable exercise and abuse of power.
6. Adverting now to the next point whether the Government had power to nominate a contractor by relaxing all the rules. The Rules 31 and 32 dealt with this subject which are reproduced hereinbelow:-- "31. Government may relax any of the provisions of these rules with reference to all Municipal Committees or any specified Municipal Committee.
32. Subject to the provisions of the Ordinance and these rules, Government and the Controlling Authority may from time to time, issue such instructions for the administration of Octroi as may be necessary and the Municipal Committee shall take such steps as may be necessary to enforce such instructions."
' The Rule 31 empowers Government to relax provisions of the rules. Rules 32 confers power to Government and Controlling Authority to issue instructions for the administration of Octroi. The Municipal Committee shall take such steps which is necessary to enforce the instructions. In the present case the relevant rule is 225 (1) and (5) which are as under:-- "225.-41) Notwithstanding anything contained in these rules, Municipal Committee may, with the prior approval of Gov'ernment, lease out by public auction for a period not exceeding one year, the collection of Octroi on such terms and conditions, not inconsistent with the provisions of this Chapter, as may be specified by Government.
(5) Where the Controlling Authority within the period specified in sub-rule (4), declares that it withholds its confirmation to the bid, the lease of the collection of Octroi shall subject to any direction that may be given by the Government in this behalf under sub-rule (1) be again put to auction and the provisions of sub-rules (2), (3) and (4) shall apply to such reauction."
' The Government could relax rule 225 but in the instant case the contract was awarded to respondent No,4 on the recommendation of respondent No,3. The order dated 2nd August 1995, passed by respondent No,I shows that neither the abovementioned rules were relaxed nor any instructions were issued by the Authority. A proposal/recommendation was sent by respondent No, 3 which was approved by respondent No,1, therefore, the order dated 2nd August 1995, cannot be described as passed under rule 31 or 32. In this regard reliance may be placed on the judgment of Hon'ble Supreme Court in Arsalla Khan v.
"However, the powers conferred by this rule is only a power to relax the provisions of the said Rules.
As the relevant rule in the instant case is rule 225. The Government could have relaxed any of the provisions of this rule, and the question is whether it has done so. Now the impugned order contains two directions. The first is that the first respondent's bid at the auction of 30-8-1975 was not fit to be accepted, and the second is that the right to collect Octroi was to be leased to the appellant. As no submission was advanced in this respect, it is not necessary to examine whether these directions amounted to instructions within the meaning of rule 32, but in any case they cannot be described as orders under rule 31 for the relaxation of the provisions of rule 225."
In view of the observations made by Hon'ble Supreme Court referred hereinabove it can safely be held that the order passed by respondent No,1 in utter violation of the Rules, was as such, passed without lawful authority. It is evident from bare perusal of rule 225 that Controlling Authority has power to withheld confirmation of auction, but had no power to grant contract for collection of Octroi to a party without having recourse to rule 225 (1) of West Pakistan Municipal Committees Octroi Rules, 1964. In this view we are fortified by the Judgment of Karachi High Court reported in 1991 CLC page 320 and an unreported judgment of this Court passed in C.P. No,169/1995.
' The powers vested in an authority created by a statute, may be administrative or quasi judicial must be decided in an objective manner. In the present case the authority did not conform the norms of judicial procedure but also failed to observe the steps and method prescribed by the rules. In this regard Hon'ble Supreme Court in case Farid Sons and others v. Government of Pakistan reported in PLD 1961 SC page 537, made the following observations:-- "If it is assumed that his order was a purely administrative one even then it will be difficult to support his order. It is well recognised that a statutory functionary exercising administrative power must conform to the steps and methods prescribed in the Act."
For the foregoing reasons we are inclined to hold that the order passed by respondent No, 1 by leasing out contract to respondent No, 4 has been passed without lawful authority and of no legal effect, as such, is liable to be set aside.
' The respondent No, 1 is directed to proceed in accordance with Rule 225 and re-auction the Octroi of Municipal Committee, Pishin.
' Parties shall bear their own costs.